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The GAP Attorneys Blog

Meeting the needs of people with disabilities, their families, educators & service providers

Posts Tagged ‘functional behavioral assessment’

School provided FAPE, despite no FBA or parent counseling

Thursday, May 29th, 2014

M.W. v. New York City Department of Education, 61 IDELR 151 (2d Cir. 2013): A federal Court of Appeals upheld the New York State Review Officer’s (SRO) determination that a school district provided a student with autism, ADHD, speech and language disorders, and fine and gross motor deficits, a free appropriate public education (FAPE).  The parent contended that the district’s failure to conduct a functional behavioral assessment (FBA) and the IEP’s failure to provide parent counseling and training denied the student a FAPE.

The Court agreed with the SRO that an FBA was not necessary, as the student’s IEP adequately identified his behavioral impediments along with strategies to address those behaviors.  Accordingly, since the IEP adequately addressed the student’s problem behaviors there was no harm in failing to conduct an FBA.  Similarly, the resources available within the student’s proposed school were sufficient to address any deficiency by failing to provide parent counseling and training.  The Court noted that a failure to provide parent counseling and training, in and of itself, is not sufficient to result in a FAPE denial.  Therefore, the school offered the student FAPE.

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Failure to conduct proper FBA and develop a BIP preclude school district from recommending more restrictive placement

Thursday, July 4th, 2013

Doe v. Regional School Unit No. 21, 60 IDELR 228 (D. Me. 2012):  A federal district court upheld an impartial hearing officer’s determination that a school district’s recommendation to place a student with ADHD, anxiety disorder, low average cognitive ability, global developmental delay, mixed expressive and receptive language disorder, phonological disorder, and fine and gross motor delays, in a more restrictive environment without first conducting a proper functional behavioral assessment (FBA) and developing an appropriate behavior intervention plan (BIP).

The school district believed the student, whose behavior significantly interfered with his learning as well as that of others, needed a more restrictive setting, but the student’s parent insisted on a mainstream setting.  To address the student’s behaviors, a special education teacher and school psychologist discussed a behavioral plan, but no formal FBA was conducted and the informal behavioral plan was never shared with the IEP team.  The hearing officer (IHO) deemed this improper, and ordered the school to conduct a full FBA by a board certified behavioral analyst and develop a BIP.  The IHO also envisioned that, after the BIP had been implemented enough to provide sufficient data, if the student failed to make adequate behavioral progress, only then could the school appropriately recommend a more restrictive setting.

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Prior written notice and consent required for an FBA assessing student’s specific needs.

Monday, September 17th, 2012

Letter to Anonymous, 59 IDELR 14 (OSEP 2012):  The federal Department of Education’s Office of Special Education Programs noted that prior written notice (PWN) and parent consent is required if a school district is conducting a functional behavioral assessment (FBA) to assess the behavioral needs of a specific student.  Only if the FBA is “intended to assess the effectiveness of behavioral interventions in the school as a whole” will the district be excused from issuing a PWN and obtaining parental consent.

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District’s behavior accommodations and psychologist’s analysis provide a FAPE, even though the district did not conduct an FBA or a full psychological evaluation.

Thursday, November 11th, 2010

Connor v. New York City Department of Education, 53 IDELR 192 (S.D.N.Y. 2009):  A U.S. District Court denied tuition reimbursement for a unilateral placement of a student with Asperger’s Syndrome and classified as other health impaired.  The parent, appealing the decision of the state review officer (SRO), argued that the IEP was invalid because the school district did not conduct a required psychological evaluation, nor conduct a functional behavioral assessment despite the student’s behavioral difficulties.

However, the SRO found (and the Court agreed) that the FBA was not necessary since the student displayed appropriate behavior in the classroom, and since the district took steps to assess the student’s behavioral needs.  Although there was no FBA, the district still took enough steps to identify the challenges the student faced as a result of his behavior.

The Court also agreed that even though the psychologist did not conduct a reevaluation when the IEP team met in 2007 (and the last psychological evaluation was conducted in 2003) the student was not denied a FAPE based on the circumstances in that case.  In particular, the school psychologist conducted a classroom observation in January of 2007, and also had the student’s September 2006 diagnosis of Asperger’s Syndrome, a March 2007 augmentative and alternative communication evaluation, and a June 2007 educational evaluation available to determine the student’s needs.

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